N. Muthaiah and Others vs Kamireddy Lakshmamma

N.D. Patnaik, J.—The petitioners are some of the defendants in O.S. No. 165/88 on the file of the Principal Subordinate Judge''s Court, Tirupathi. They have filed LA. No. 523/89 to set aside the ex-parte decree dated 6-10-1988 passed against them. As the learned Subordinate Judge dismissed that petition, they preferred this Revision.

From the Order of the Lower Court, it can be seen that summons were ordered to the defendants only through Court. The Order also reads that the defendants refused the summons when tendered by the Process Server and therefore, there was affixture and the learned Subordinate Judge was satisfied with the service of the summons by affixture and set the defendants ex-parte as they were called absent and after recording the evidence of the plaintiff, passed an ex-parte decree.

In this revision, the learned counsel for the petitioners contended that there was no proper service as contemplated under Order V.C.P.C. He has pointed out that under Rule 19-A it is obligatory on the part of the Court to order service of summons both through Court and by registered post unless, the Court dispenses with service by registered post where it considers it unnecessary. The learned counsel has pointed out that in this case, the Order of the Lower Court shows that service by registered post was dispensed with on the ground that it will cause some more expenditure to the plaintiff, which is not at all proper ground for dispensing with the service of summons through registered post.

The learned counsel for the respondent has pointed out that under Order-V, Rule 9(3), it is in the discretion of the Court to cause the summons to be served on the defendant by registered post also, and as the Court has exercised the discretion in this case and directed that summons shall be served through Court only, there is no irregularity. Sub-rule-3 of Rule 9 of Order-V was incorporated by amendment made by the High Court of Andhra Pradesh to the effect that where the defendant resides in India, whether within the jurisdiction of the Court in which the suit is instituted or not, the Court may direct the proper officer to cause a summons under this order to be addressed to the defendant at the place where he ordinarily resides or carries on business or works for gain and send it to him by registered post with acknowledgement pre-paid. An acknowledgement purported to be signed by the defendant shall be deemed to be sufficient proof of service of such summons. But by virtue of the Amendment of CPC. in 1976, Rule 19-A was inserted which says that the Court shall in addition to and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19, also direct the summons to be served by registered post with acknowledgement due, addressed to the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain; provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where in the circumstances of the case, the Court considers it unnecessary. So though previously it was optional for the Court under Order V Rule 9(3) to send the summons by registered post, now by virtue of the said amendment and insertion of Rule 19-A, it is obligatory on the part of the Court to send summons both through Court and by registered post, unless the Court dispenses with the summons by registered post, if it considers it unnecessary. This discretion has to be exercised by the Court considering the circumstances of the case and cannot be mechanically exercised and that too, only on the ground that it will be expensive for the plaintiff to take out summons by registered post with acknowledgement due. In this case, as stated above, the order of the Lower Court says that the Court dispensed with the service of the summons by registered post with acknowledgement due, because it will be expensive to the plaintiff. It is not at all a proper ground for dispensing with the service of summons by registered post.

The report of the Process Server to whom the summons were entrusted, reads that as the defendant refused to receive the summons, he has affixed the same as required under Rule 17. The Lower Court accepted that endorsement of the Process Server and set the defendants ex-parte. The learned counsel for the petitioners contended that the Process Server was not examined as required by Rule 19 and therefore, his endorsement cannot be relied upon. But the Lower Court has pointed out that the Process Server has made an endorsement on the summons to the effect that the defendant has refused to receive the summons and therefore, he has affixed and it had accepted the endorsement of the Process Server, which is purely a finding of fact and therefore, as contended by the learned counsel for the respondent, it is rot open for this Court in revision, to go into the question whether the Process Server has made a correct endorsement or not.

But in view of the fact that summons by registered post have not been ordered as required under Rule 19-A and there are no proper grounds for dispensing with the summons by registered post, I accept the contention of the learned counsel for the petitioner that there is no proper service of summons as required under Order V of Civil Procedure Code. The Revision is therefore, allowed and the ex-parte decree passed against the petitioners is set aside. The petitioners are directed to file their written statement in the trial Court within two weeks from the date when this Order is received in the Lower Court and then the Trial Court may proceed with further steps in the suit and dispose of the suit expeditiously. No costs.